How can I defend the charges if the machine says I blew over 80?
If you provided sample of your breath and the machine said you blew over the legal limit, you have likely been charged with driving with a blood alcohol over the legal limit (s. 253(1)(b) of the Criminal Code). This is known as an “Over 80” or “Over .08” charge. The reason the 80/.08 is relevant is because the criminal legal limit in Canada is 80/.08. The 80/.08 actually refers to a concentration of alcohol in the blood. For example, if someone blows, 80/.08, it means that the person’s blood alcohol level is 80 milligrams or .08 grams of alcohol in 100ml of blood. So every 100ml of blood in that person’s body contains 80mg/.08g of alcohol. This is known as someone’s BAC (Blood Alcohol Concentration). The Criminal Code expresses the offence in milligrams, so although many people use the .08 terminology, the more appropriate expression of a BAC is in milligrams, which is what we’ll use.
Also notice that the charge is not just 80, but rather over 80. Sometimes, even the police get this wrong, but it’s actually not an offence under s. 253(1)(b) of the Criminal Code to drive with a BAC of 80. It’s only an offence if the BAC is over 80.
Over 80 litigation is an extremely technical area of law. Just because the machine said your BAC is over the legal limit does not mean you were in fact over the legal limit, nor that you will be found guilty. Whole books have been written just on the topic of “Over 80” defences, and it is the job of a competent DUI lawyer to be well versed in each and every defence. While all the available defences are just too numerous to list, there are two major categories. There are the “Charter” defences, and the “non-Charter” defence.
The category of “Charter” defences refers to the requirement that in conducting their investigation the police respect all your constitutionally protected rights under the Charter of Rights and Freedoms. Consider that the central evidence against you in an “Over 80” prosecution is the Certificate of a Qualified Technician. This document states what you blew, and is produced only at the very conclusion of the entire investigation. Think of the whole investigation leading up to the production of that document as a chain being pulled out of the water with the Certificate being tied to the bottom end of the chain. If anywhere along that chain, the police violate your Charter rights, it’s the equivalent of breaking a link in the chain. Breaking any link in the chain collapses the whole thing, and the certificate strapped to the end falls back into the water, never to be seen by the judge.
So how strong are the links, you might ask? Although the onus is typically on you ( and your lawyer) to show that the police violated your Charter rights, some violations are presumed to have occurred in virtually every “Over 80” case. Particularly with cases where someone is alleged to blow over the legal limit, the police conduct a warrantless search each time they take a sample of breath from the detainee. As such, the prosecutor must prove that each step in the breath testing process and sequence is authorized by law. This search must be conducted in a manner that is consistent with law, and if it is not, requiring you to provide a sample of your breath violates your constitutionally protected right to be free from unlawful search and seizure. If your constitutionally protected rights are violated during the arrest, the Judge must determine whether admitting the results of your breath test will bring the administration of justice into disrepute. If the Judge determines that the administration of justice will be harmed by the admission of your breath sample results, these results will be excluded from the trial and you will be acquitted of blowing over the legal limit.
Beyond the “Charter” defences, there are still a myriad of defences dealing with the reliability of the breath tests. Just because the machine spit out a reading that is over the legal limit doesn’t necessarily mean it’s accurate. Even if it is accurate, it doesn’t mean your BAC was over the legal limit at the time of driving.
An experienced criminal lawyer will review the breath testing documents to see if the instrument taking the breath samples (currently the EC/IR II) was properly calibrated and maintained. Likewise, it is important to review the breath testing procedure to ensure the instrument was operated properly by the breath technician. The breath testing instruments are not infallible. Mouth alcohol, improper calibration, and operator error can all lead to erroneous results, and it’s our job as criminal defence lawyers to spot these issues if they occurred. As you can probably tell if you’ve read to the end of this write-up, this area of law is incredibly dense and complicated. Consulting a criminal defence lawyer with experience in impaired driving defence will greatly improve your ability to fight the charges you face.
About The Author
Ask A Question
We endeavor to respond to questions within 24 hours. If your matter is urgent, please call our office or submit a request for a free consultation.
Michael Oykhman is a very professional lawyer and the first time I spoke to him he asked about my situation and he gave me some very helpful advice and assistance and also told me his odds of winning this case. During the days I was in contact with micheal I could feel the level of professionalism of him and his team, he is able to respond back to you with any questions you have within 24 hours. In the end he was as successful in helping me win my case as he had initially promised me.If you are still struggling to find a lawyer, I highly recommend Michael Oykhman.
Please give yourself a favour and contact Mr. Michael Oykhman if you need any legal advice or if you are in a terrible situation. Even-tough, the odds are not in your favour, still they will go extra miles to help you out in bad situation and get you favourable outcome. Moreover, They will work on your file even after the business hours. I don’t have words to say thanks to Mr. Michael oykhman and Kiran Cheema who had worked on my file and get me out of trouble. I’m very grateful for your assistance and exceptional service. HIGHLY RECOMMENDED.
I am grateful that Ms. Moira McAvoy was my lawyer, and I remain thankful to her for everything. She made a successful resolution to my case possible. Ms. Moira McAvoy is a professional, trustworthy lawyer, and a compassionate person. She is an excellent listener and knowledgeable of the law. From the start, she was an excellent guide. I did not know anything about the legal system and court, and she outlined everything clearly in advance, so I could understand things. She never rushed me through anything. She spoke clearly, explained everything, considered what I said, and provided options and advice. She kept me up to date on new information, requirements, and deadlines. She was always positive and this helped so much.
Ryan Patmore and his team are simply the best. I was bullied by CPS in 2020 and it landed me with three separate charges, assault, refusal to blow and DUI, which all went down as I was parked at a friends. After some research and a conversation with Michael, he directed me towards Ryan and at the time I didn’t know that would be a game changer in my favour! He is honest, transparent, helpful and a brilliant mind. He successfully appealed my license suspension with ATSB and then proceeded to get the crown to dismiss all my charges before trial. I never had to step foot inside a courtroom. If you are in need of a criminal defence lawyer, don’t think twice, get in touch with this firm and ask for Ryan Patmore! The guy is an absolute saviour.
Joseph Beller, from the very beginning when I first contacted and then retained Joseph as my representative I felt I was in good hands. When I emailed him with a question. I got a prompt response. We communicated often on the phone as needed. Joseph kept me informed as to the process. He made sure I knew all the potential results so I knew and could plan for the different outcomes. I know this his his job. But appreciate his professionalism and also his ability to not make me feel any extra stress. Well done.